My substantive point is this: what is the mischief aimed at by these documents? Surely it is to reduce delays in the Court and generally to make it more efficient. Hardly a controversial aim, and the Government broadly accept these aims. The question is whether they are ready to accept the means to achieve those aims. The report of Sub-Committee E, to which the Minister alluded, published in April last year, was highly commended by the Court itself but had a disappointing response from the Government.

We set out the delays and predicted another crisis of workload, as a result both of the Lisbon additions to the work in the area of freedom, security and justice, and of the number of expansions of the membership of the European Union. The predictions of that sub-committee have indeed come to pass, in that in 2009 there were 17 preliminary requests in respect of Lisbon areas but in 2011 there were 44 such requests. That comes from the last annual report of the court, just published.

If justice delayed is justice denied, then there is a prime delay and hence a great deal of denial. The most recent annual report shows that in 2011 the General Court was certainly more productive but at the same time the backlog increased substantially. Clearly the Court cannot keep up with the volume of new business coming to it. To improve the situation, there are three broad areas to be considered.

The first is translation; it is a booming industry. We know prolix lawyers. The proposal to limit the translation to those deemed essential by the court was rejected, probably correctly, because only the litigants themselves can decide that which is important. The compromise was agreed that the Court of Justice may set the maximum of written proceedings. We must now wait to see if the result of that change justifies the Government’s confidence.

There were institutional changes, such as specialist committees, that were rightly rejected as they are inflexible. However, there were some useful minor reforms—for example, new powers given to the vice-president to reduce the workload on the president, and changes in the composition of the grand chamber to even out the workload between the judges. But the key way of reducing the backlog and increasing efficiency is clearly to increase the number of judges in the General Court—the suggestion is by at least 12. That was done in the Civil Service Tribunal by the appointment of three temporary judges in certain circumstances, as the Minister said. That may indeed be a partial solution for the General Court itself, but one cannot avoid the strong case for an increase in numbers.

In May, the Government supported the delay during the Danish presidency of the creation of a friends of the presidency group. The Minister will be well aware from Syria of the new currency of friends of this and friends of that in international parliaments. But there

23 July 2012 : Column 566

will be a delay until at least December until this informal procedure publishes its report and one returns to the formal procedure.

Therefore, the conclusion is that of course the Government must scrutinise very carefully any proposition for an increase in judges at this time of austerity, but there are also costs in delay. In 2009, as the Minister said, the CBI complained to the sub-committee that in competition cases—those cases most relevant to the single market—the average delay was then 33.1 months. The Minister will have noted that in 2011, according to the annual report, the average delay was 50.5 months. That is more than four years for litigants and business in the UK in single market cases to have to wait for a determination. Surely the Minister and the Government will accept that that is an intolerable delay.

With this compromise of the friends of the presidency, which will seek to report by December, in effect the Government and their allies are putting off a decision for yet another year. In December there will be the report of the friends of the presidency. That will have to be referred to the Council itself. The Council will have to deliberate on the various recommendations. Thereafter, if an increase is agreed—and almost certainly there will have to be some increase in the numbers—there will have to be a recruitment procedure. Perhaps the Minister can confirm this but there will probably have to be yet another delay of perhaps a year before any proposals arising from the friends of the presidency can be implemented.

We have seen the delays rise from 33 to 50 months. It may be well on another 10 or 12 months’ further delay, at great cost to British industry and great damage to the single market. The Government may be penny-wise but they will be proved to be pound-foolish.

8.33 pm

Lord Marks of Henley-on-Thames: My Lords, my noble friend the Minister and the noble Lord, Lord Anderson of Swansea, have rightly recognised that the provenance of these proposals is the backlog of cases before the Court, and the fact that the Court, particularly the General Court, has become snowed under by the increasing workload. As the European Parliament’s rapporteur, Diana Wallis MEP, pointed out in her report on the proposals, for several years the number of new cases in the General Court has seriously outstripped the number of cases resolved.

The backlog is not just substantial; it is getting worse year by year. There are three basic reasons for that. The first is successive enlargement. The second is the increasing volume of litigation as a result of the Lisbon treaty introducing new areas. The third is the very welcome introduction of new procedures for accelerating a procedure in clear cases and for interim measures which, while very welcome, are nevertheless expensive in resources. Against that background, the reforms that we are debating today are welcome—in particular, the decision to appoint a vice-president of the Court of Justice.

Since he came into office in 2003, Professor Vassilios Skouris has been very successful in improving the performance of the Court and in streamlining procedures. However, with the increasing workload of the Court,

23 July 2012 : Column 567

it is only right that the president should be assisted by a vice-president able to preside in his absence and provide continuity in the Grand Chamber where they will both sit, while freeing up the other presidents of the chambers of five judges not to have to sit in every case.

However, I want to ask the Government the question alluded to by the noble Lord, Lord Anderson of Swansea: why did the Government seek—successfully in the event —to defer the proposed increase from 27 to 39 judges in the General Court? The European Scrutiny Committee, to which reference has been made, had no doubt. It reported as follows:

“We conclude that the great majority of evidence recommends an increase in judges of the General Court as the best and most flexible solution to its current workload problems. This would have cost implications … but they appear to be necessary if the EU is to have a judicial system in which justice is dispensed without unacceptable delay”.

In her report, Diana Wallis weighed up the two possible routes that might offer the structural reforms that the European Court of Justice sought. The first was to establish a series of specialised courts and the second was to increase the number of judges. The European Court of Justice came down firmly for the option of increasing the number of judges. They said that it would be more effective, quicker to implement given the urgency, more flexible, and more likely to lead to consistency in European jurisprudence. I would add that a substantial increase in the number of judges would bring in a wider range of specialisms available to the Court in particular cases. The rapporteur found the evidence presented by the European Court of Justice persuasive.

The Government’s reason for the deferral was to do with funding. One accepts that but one must also bear in mind that the cost of the Court is very small—one-quarter of 1% of the EU’s budget; less than 5% of the European Union’s institutions overall. The estimated cost of each extra judge would be in the region of €1 million, including staff and establishment costs. The central point on funding is that not increasing the number of judges is no real economy. The backlog of cases represents a build-up of future expenditure that will have to be incurred at some stage in the future, as the cases will have to be determined. Meanwhile, we are paying the price of the backlog in delay, inefficiency and frustration for litigants and for business. We are not resourcing the Court to do its work properly, which reduces its reputation at the same time.

Can the Minister indicate how far negotiations have progressed to date? When do the Government expect the friends of the presidency group to produce a result? What delay is inherent in the deferral? What do the Government have in mind for reducing the backlog of cases before the General Court in the mean time?

8.38 pm

The Earl of Sandwich: My Lords, I served on Sub-Committee E when we produced our report last year but I was unable to speak in the debate last October, which is why I am here today. However, the wheels of EU government, and our own, turn desperately slowly and little has happened during the interval.

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The president of the Court himself proposed reforms over a year ago. Some of these are, at last, before us today. I support the Motion that Parliament approves the draft regulations as far as they go, but, as we have heard, they do not go far enough to solve the basic problem. The EU Committee has had hardly any time to consider this matter. Once again, this House is discussing important business at the 11th hour—after everything has been said and when it is too late to change anything—although this has never in the past prevented noble Lords from saying what they think again.

The evidence suggests that the Court of the European Union is at serious risk of implosion. The Minister for Europe says that it is not a crisis. The crisis is not here today, but it is just around the corner, even in the Court of Justice itself. The number and length of cases before it has made some areas of the Court almost unmanageable. In our report we suggested increasing the number of advocates-general in the Court of Justice, as already provided for in the Lisbon treaty. Let us remember that with the new member states, the ratio went up in 2003 to 27:8 from 15:8. No wonder the workload became unmanageable. The rearrangement in the Grand Chamber may help, but meanwhile the General Court is still stuck with only one judge per member. What a terrible advertisement for the European Union, and such easy prey for the ever-prowling Euro-sceptics mentioned by the noble Lord, Lord Anderson. They include some in the Conservative Party who must distrust the size and power of the European Court; we have to face that.

The Minister will have tried to put pressure on his own colleagues, quite apart from other EU Ministers, and this regulation will at least bring him some temporary relief. But as the noble Lord, Lord Bowness, and others have said repeatedly, the Court of Justice is vital for the proper functioning of the European Union itself and it therefore must receive the full support of member states if it is to succeed.

The biggest problems, as the Minister freely admitted, lie in the General Court, which is already overloaded. The pending cases are piling up. The average turnaround in a recent year was 33 months, and one competition case, which has been quoted frequently, took more than four years to complete. As the Minister said, and the noble Lord, Lord Marks, repeated, we suggested some time ago that there should be 12 more judges and tighter rules of procedure rather than the creation of specialist courts. Her Majesty’s Government did not, and perhaps still do not, accept the need for more judges, although the Minister says that the Government take the issue very seriously. What are we to think?

In the debate last October, the noble and learned Lord, Lord Wallace of Tankerness, appeared to agree with the direction of our report and the need for some procedural reforms such as economies in the length of pleadings—but not, of course, with anything that might incur extra cost. The committee suggested that this need not involve taxpayers directly since, as an EU institution, the Court had a reasonable claim on the EU budget. My noble friend Lord Williamson will explain the truth of this. The Minister mentioned value for money, but he was silent on the source of

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funding. I hope that he will advise us on this later. I am not proposing another government assault on elements of the CAP; rather I seek a recognition in principle that the EU budget is what the Court should look to. As the noble Lord, Lord Marks, said, the costs are bound to increase over time.

The European Union Civil Service Tribunal is a similar story, although we did not have the same concerns. Since our report, the Government have accepted that delays can and do arise from the shortage of CST judges, especially when one falls ill or cannot attend. Again, the president had proposed an ad hoc solution whereby three former judges would come in on a temporary basis, but absurdly, until today Her Majesty’s Government rejected this obvious proposal. Why was that? It was because of budgetary concerns. Perhaps the Minister will explain how it can take so long to reach a change of heart under these new regulations.

The question of judges in the General Court is excluded from the present draft regulations, but the Minister for Europe has assured the committee in a letter that the friends of the presidency group is going to look at it between now and December. The noble Lord, Lord Anderson, also mentioned this. Could this be another opportunity for delay? I am all for ginger groups stitching up solutions, but this method betrays a degree of exasperation with the formal structure, and further delays will follow.

On the Court’s proposed new rules of procedure, the Government have been reluctant to let the Court itself rather than the parties make the decisions, but in the end they recognised the need for some economies in the excessive length of written pleadings, thus reducing the burden of translation. Let us remember that there are 23 official languages in the European Union. I am myself in favour of English alongside French, but the committee did not support that as it is a highly sensitive issue.

The evidence for urgent reform before the Committee a year or two ago was overwhelming, and it remains so today. We have heard some of the statistics today. I am sure that the Minister is much more aware than any of us of the urgency of these reforms and of the apparent helplessness, not to say impotence, of all our Governments on this issue. I look forward to his comments.

8.45 pm

Lord Bowness: My Lords, I declare my registered interests as the holder of a solicitor’s and notary’s practising certificate. The justice and institutions sub-committee, which I chair, of the European Union Select Committee welcomes the Government’s proposal regarding the draft regulation before the House this evening, but in line with our report on the workload of the Court, as mentioned by other noble Lords, we wish that the proposed regulation addressed the need for more judges to be appointed to the General Court. We are pleased that discussions in which the United Kingdom is participating are taking place but we do not want the momentum for reform to be lost by dealing with the matter piecemeal. I am pleased to learn that the friends of the presidency group is due to report by December.

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At the time of our report we were concerned about the increased workload due to the many reasons referred to by the noble Lord, Lord Anderson of Swansea: the extension of the jurisdiction of the Court, the impact of EU expansion and the Court’s own analysis of its workload. The noble Lord, Lord Marks of Henley-on-Thames, has already pointed out that the amount of money involved is quite small—a quarter of 1 per cent of €126,527 million.

The General Court, which is our concern, deals with almost all the cases brought against the institutions and agencies of the EU. They are complex cases and it is here that the problem lies in managing the current and likely future workload. Our committee’s report proposed a number of solutions and I explained these at length in the debate on 17 October last and will not take the time of the House by repeating them. In summary, we accepted there was a case for better case management but that by itself would not solve the problem. The language regime and translation was not the main cause of delay. We rejected as a long term solution the creation of additional specialist chambers and the answer was—in our opinion—the appointment of additional judges to the General Court which can be done without treaty change.

The committee also holds under scrutiny proposals for reform of the Court of Justice, some of which form the proposals before us this evening, all of which we support: the creation of the vice presidents of the Court and the General Court, the amendment of the rules relating to the composition of the Grand Chamber, the abolition of the rule requiring the reading of the rapporteur’s report at the oral hearing and the appointment of temporary judges to assist the civil service tribunal.

Still outstanding, however, are the issues of increasing the number of General Court judges and the revision of the rules of procedure. I support this resolution, but why does the appointment of temporary judges to the Civil Service Tribunal engage Section 10D of the European Union Act 2011 when that section refers to the establishment of specialised courts and this deals with the appointment of temporary judges to it? If the recommendation is for more judges, will we need the same parliamentary procedure before Her Majesty’s Government may agree the proposal?

My closing comments are mine rather than necessarily reflecting the opinion of my colleagues on the justice and institutions sub-committee. I read with considerable care the debate in the other place on this resolution in which a number of assertions were made by Members with strongly held opinions which I respect but which I believe need to be rebutted somewhere on the record of this Parliament. My honourable friend Mr Jacob Rees-Mogg suggested on 12 July, at col. 503 of the Official Report,that it might be in people’s interests for the Court to be “bunged up”. I do not want the Court of Justice of the European Union to reach the same state as the European Court of Human Rights where there are some 125,000 outstanding cases.

The European Union is based on the rule of law and respect for human rights and the Court is a vital institution for the proper functioning of the Union. Without it we will have nothing to buttress the operation

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of the single market from which everyone wants to benefit but which critics of the EU want without the burden of the rules which underpin it.

It was also suggested by another honourable Member that private parties’ disputes could be resolved in London using contracts which specified the determination by English law and that would stop European judges replacing the work of—again, I quote, for reasons which lawyers will understand—“British” judges. That rather misses the point that the European Court deals with European law and its interpretation, which must be uniformly applicable across the member states if we are to enjoy the benefits of the single market, the importance of which, I am pleased to say, has been underlined by my noble friend the Minister.

It was further suggested by my honourable friend Mr Rees-Mogg that the court is,

“not a proper, honest, decent court, like our courts are”.—[

Official Report

, Commons, 12/7/12; col. 510.].

He used as justification for that assertion that the Court had ruled to increase its own pay. It would be good to hear the Minister confirm that the pay of European officials, including judges, is determined by the staff regulations agreed by the Council, comprised of the member states, and that the Court did not rule to increase its own pay. Rather, it determined that the proper procedures had not been followed by the Council in making a regulation to adjust salaries of all EU officials—not just judges. The judgment makes it clear that the Council should have sought to proceed under a different article in the staff regulations. The case was therefore similar to a UK judicial review of government decisions taken improperly.

Lastly, my honourable friend Mr Cash said that the court is,

“manned by people who, I have no doubt, could be regarded as generally proficient in law, as they are professors and celebrated advocates; the problem is that the members are not drawn from judges alone ... In the UK, it is unimaginable that members of a senior court at such a level would not be drawn from the senior judiciary”.—[

Official Report

, Commons, 12/7/12; col. 508.]

Can my noble friend confirm that the most recent appointment to United Kingdom Supreme Court, Lord Sumption, had, until his appointment, not held full-time judicial office and that there are precedents of appointments from Scotland to the Lords of Appeal in Ordinary to serve in your Lordships’ House?

The European Union Act means that we will have many more debates on relatively minor, although not unimportant, pieces of EU legislation. In some ways, that is welcome, as Parliament becomes more engaged with EU matters. However, it means that the Government will have to be ready to rebut arguments put forward by those who will oppose anything and everything, as it presents an opportunity to advance their opposition to the European Union.

My right honourable friend the Prime Minister was reported as telling the Daily Telegraph on 19 July that he would never campaign in favour of leaving the EU. With the greatest respect, if that question is ever put, the arguments for the European Union will need to have been clearly articulated and assertions similar to those exposed in the debate in the other place firmly

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and loudly rebutted if only to ensure that those of us who would join the Prime Minister in campaigning against leaving succeed in such a vote.

I trust that we will support the resolution so that Her Majesty’s Government may support the proposal at the meeting of the Council—which is, I believe, tomorrow.

8.53 pm

Lord Hannay of Chiswick: I shall speak briefly in support of the Government’s resolution on the reform of the European Court of Justice. I will not go into the detail of the reforms, which have already been very competently described by the Minister, or into the detail of the grounds, which were well prepared by the excellent report produced during our last Session by the noble Lord, Lord Bowness, and his Sub-Committee E of the EU Select Committee, which the Home Affairs sub-committee, which I chair, works in very close concert with. I join the noble Lord in deploring the fact that the Government have not agreed to the increase in the number of members of the General Court recommended in the report.

I shall address one or two more general issues about the European Court of Justice. It remains a cause for dismay, and sometimes despair, that so little is known in this country about the European Court of Justice, its rationale and its work. Even generally well-informed commentators find it difficult to distinguish between the European Union’s Court of Justice, which we are discussing this evening, and the Council of Europe’s human rights court. Yet these two bodies have jurisdiction over completely different areas of international law, which apply to a completely different membership— points that one would have thought were fairly easy to grasp.

Many commentators do not even try to understand the distinction. In their eyes, the two courts are simply part of some supposed European conspiracy designed to deprive law-abiding British citizens of their rights and sovereignty. All that is asserted despite the fact that the jurisdictions of both courts and the laws they exist to apply have all been established by the votes of this Parliament, just as our domestic laws have been. That these ill-informed criticisms have such a wide currency is no tribute to either the commentators who use them or the audiences to which they are addressed.

Just in case anyone is minded to regard what I have just said as a trifle paranoid, may I suggest that reading Hansard on the debate in another place on the reforms we are discussing tonight would cure them of that illusion? Not only were some of the interventions larded with phrases that would never be considered parliamentary if directed towards any court in this land, but in addition it was seriously suggested that our national interests would be best served if the European Court of Justice were indeed “bunged up”. Those are not my words; this rather juvenile, puerile humour in which European issues are often discussed in the other place is not one I would choose myself. That is surely a prime example of worst is best—a reasoning that it is bizarre to hear coming from supporters of the Government. With supporters like that, one wonders why they need an Opposition.

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In contrast to that argument, I would suggest that the rationale for the European Court of Justice is a simple one that has been made by other noble Lords in this debate. From the outset, the European Communities, now the European Union, were granted certain carefully circumscribed legislative powers, and jurisdiction over disputes about the application of the treaties and laws adopted under them was to be exercised not simply by originally six and now 27 national legal systems but by a European court on which all member states were represented. In this way, from the very beginning the rule of law was a leitmotiv of this new international project, and common sense surely indicates that it has to be if concepts such as the single market—to which, rightly in my view, this country attaches primordial importance: a fact that the Minister underlined, which was welcome—are to provide the level playing field that we all seek.

That was the European Community we joined in 1973, so please do not let us hear again the argument that somehow we joined something different. The European Community that we joined had a Court of Justice with the powers necessary to apply European law. We may sometimes dislike or even deplore the Court’s judgments. Many of us do the same from time to time with regard to the judgments of our own domestic courts, but to contest or to seek to reverse or qualify the European Court of Justice’s jurisdiction is to contest our membership of the European Union itself. All that was set out far more eloquently than I can do, during our debates on the ratification of the Lisbon treaty, by the late Lord Slynn of Hadley.

Do we have an interest in helping the European Court of Justice to work more efficiently and effectively, which is the purpose of the reforms that we are debating this evening? The answer to that must surely be yes. As a country that has for many centuries been committed to the rule of law, it is desirable that legal rulings should be provided without undue delay, and that the increased workload of the Court that inevitably flows from the geographical expansion of the European Union and the extension of its responsibilities into new policy areas should not result in such delay.

I have one final point to make. In 2014, Britain will have to decide whether to accept the jurisdiction of the European Court of Justice over legislation in the fields of justice and home affairs, adopted before the Lisbon treaty came into force. That is to say: it was legislation that by definition was adopted by unanimity. The Government have, very correctly in my view, decided to consult widely about the decision then to either opt out or opt in to that jurisdiction, which all other member states are already committed to accepting by the end of 2014. They have agreed to put the matter to votes in both Houses. I have no intention of entering into the substance of that decision now. My plea is simply that those consultative processes and those votes should be based on full evidence of the pros and cons of the two possible courses of action, transparently presented and carefully considered.

My committee and that of the noble Lord, Lord Bowness, will be seeking to provide the House with that evidence in good time. Meanwhile, I suggest that it would be better not to jump to conclusions, as so

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many Members of the other place have already done. It is better not to decide in haste and then repent at leisure.

9.01 pm

Lord Williamson of Horton: My Lords, as is normal, I declare an interest in that I spent a large part of my career dealing with European affairs in the UK Civil Service and part of it in the European Commission, and that I have pensions from my work.

The House is of course already aware of the problem identified in the two draft EU regulations to which this Motion relates—namely, the backlog of cases and consequent delays in the European Court of Justice, in particular in the General Court, and in the European Civil Service Tribunal. The average turnaround in competition cases was recently 33 months but rising, as stated by the noble Lord, Lord Anderson. That is a serious matter when settling these extremely important questions for business, both that of this country and of others within the European Union. The House debated the issue on 17 October last, when the noble Lord, Lord Bowness, presented a report of the EU Committee. It is fair to say that in that debate, and again of course tonight, all noble Lords who spoke considered that some action was necessary, including the possible increase in the number of General Court judges from 27 to 39. I shall come back to this point because that proposal is not dead but is not in draft Regulation 2011/0901, as now amended, which is before us this evening.

In October last year the right honourable Member and Minister for Europe, Mr Lidington, stated in a letter that the Government were not convinced that the Court is facing an imminent crisis. In the debate on 17 October, the noble and learned Lord, Lord Wallace of Tankerness, slightly elaborated on that point when he said that the EU Committee and contributors to that debate recognised that the Court of Justice had done a remarkable job in managing the case load and that it was “in that context” that the Government did not accept that there is an imminent crisis with regard to the Court of Justice.

I shall come back specifically to the Motion before us, but I will make two preliminary points. First, the document tells us that the two draft regulations are to be put to the Council for agreement on 24 July—that is to say, tomorrow. We are running it a bit fine, if I may say so, because the Motion is needed to comply with Section 10(1)(e) of the European Union Act 2011, under which a Minister may not vote in favour of or otherwise support the decision unless parliamentary approval has been given. In some respects, I believe that the European Union Bill went too far, but I am attentive to the meticulous respect of the 2011 Act, which is now in force. Secondly, it was difficult last week to get hold of the two draft regulations with which this Motion deals: 2011/0901 and 2011/0902. By chance, however, I came upon the briefing pack from the Library and I can tell the Minister that my comments rely on that pack.

In substance, what we are now being asked to approve in the current version of Regulation 2011/0901 is the establishment of a vice-president of the Court of

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Justice, the removal of the requirement to read the report of the judge rapporteur at the hearing, and the modification of the composition of the Grand Chamber to have at least three presidents of chambers of five judges as well as the president of the Court, the vice-president and other judges. In Regulation 2011/0902, we are asked to approve the possibility of attaching temporary judges to the European Civil Service Tribunal, and that does not appear to be controversial. I think that we can agree to the procedural changes as the Government recommend.

In October 2011, there were 1,323 cases pending before the General Court. That is too many. In an Answer to the noble Lord, Lord Kilclooney, on 10 January, the noble Lord, Lord Howell of Guildford, stated that 20 live cases were referred from a UK court or tribunal where judgment had not been issued by the European Court of Justice, and some of these were quite old. He did not say that they were old, but I can assure him that they were. There are a number of reasons for the increase in the judicial load. One is the regrettable increase in legislation. Another, to which I draw particular attention—and it has not been mentioned so far tonight—is that, as stated in the Commission’s opinion of 30 September last:

“the highest rate of increase has in fact been in appeals against decisions concerning sanctions against people or entities based on mechanisms established under the Common Foreign and Security Policy”.

It is always a cause for serious reflection if the number of appeals increases, since they represent a non-acceptance of earlier judicial or similar decisions.

What we are not being asked to approve tonight, which a lot of Members regret, is the increase in the number of judges in the General Court from 27 to 39, at a cost estimated by the European Court of Justice itself of about €13 million a year. I am very keen that, because we recognise some action is needed to reduce the overload in the General Court, we should not consider implicitly favouring this specific proposal. I believe that we may need an increase in the number of judges, but I cannot find anywhere in this excellent pack a specific justification for the considerable increase from 27 to 39. I am aware that the European Court of Justice asked for it, but we need to be sure about the reason for that particular number.

The rapporteur of the Committee on Legal Affairs of the European Parliament concedes rightly in her report that,

“there is no empirical method of demonstrating that the figure of 12 additional Judges is the correct one”.

I certainly think that that matter needs careful consideration, despite the enthusiastic support of many Members of this House for action on the number of judges.

9.08 pm

Lord Liddle: My Lords, we had an excellent debate on this subject last October on the equally excellent report of the committee chaired by the noble Lord, Lord Bowness, on the European Court of Justice. I think that many noble Lords tonight share a certain disappointment that we are only being asked to give our approval to a rather modest proposal by comparison with the reforms that were set out then. On the modest

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proposal, we think it right that it needs to be approved by Parliament. This is one aspect of the European Union Act 2011 of which the Opposition approve—greater parliamentary control, but not multiple referenda.

Secondly, this is a welcome step forward, so we support it. As the very talented Europe Minister in the other place, Mr David Lidington, pointed out,

“justice delayed is justice denied”.—[

Official Report

, Commons, 12/7/12; col. 504.]

We fully agree with that principle. However, it is clearly not a full solution to the problem, or anything like it. The Government accept the case that more needs to be done. The Minister in the other place pointed to the 18% increase in workload of the Court in the past four years. Then there is the fact that with enlargement, which by increasing the number of judges originally eased the problem, more cases arose from its being a much bigger Community. With the communitisation of justice and home affairs, the workload has increased even further.

The argument that reform is needed is unanswerable. It cannot be in the UK’s national interest that the body that is the arbiter of the single market should be gummed up, as was said in the other place. I would like to hear from the Minister tonight that despite this modest reform Britain will continue; we will not regard it as enough but continue to be a persistent advocate of further improvement and measures to tackle the workload problem in the Court. I was encouraged by what the noble Lord, Lord Howell, said about the Government working to find an effective solution. This will almost certainly involve the appointment of extra judges to the General Court. The noble Lord, Lord Williamson, may be right that whether the number is 12 needs to be looked at more closely. Around the House we would like to hear from the Government tonight that they agree with the proposition that more judges need to be appointed to the General Court.

I recognise that there is a very legitimate point about cost, efficiency and value for money. I am very sorry that I had to pop out when the noble Lord, Lord Marks, spoke, but I heard him make the point that the cost of the ECJ was about 0.15% of the EU budget. It is a very small amount of money and it seems that the gain would be very considerable from our national perspective. So I do not think that cost should be a barrier to what we regard as a change. Of course, we have to seek efficiencies and I am sure that we should be doing that. Although the language regime may not result in delays, it certainly adds to the costs of the Court, so we should be advocates of change there.

On this side of the House we share the concerns expressed by many Members, initially by my noble friend Lord Anderson of Swansea, that what is preventing the Government from taking this issue forward is the pressure from Members in another place who basically do not like Europe and do not want to see it working properly. I was as appalled as many Members were when reading the Commons Hansard, although the criticism comes much better from someone like the noble Lord, Lord Bowness, than it does from me. I was appalled by what the Member for North East Somerset, Jacob Rees-Mogg, said. He is regarded as one of the brightest and best of the new intake in

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terms of his intellectual and speaking abilities, but I refer noble Lords to the language that he used about the Court, saying that it is,

“not a proper, honest, decent court”.—[

Official Report

, Commons, 12/7/12; col. 510.]

He said that it was a “rotten court”. This displays an extreme and ignorant point of view, and the Government in their own interests must make it clear that they will not allow a common-sense solution to these problems to be blocked by that kind of attitude in another place.

We look forward to the friends of the presidency report by the end of the year and we would like the Minister’s assurance that the Government will vigorously rebut the ill informed criticisms that stand in the way of a proper solution to this problem.

9.15 pm

Lord Howell of Guildford: My Lords, I join others in thanking all noble Lords who have participated in this debate on the Court of Justice of the European Union. As I mentioned at the beginning, I believe that this is the first time the House has had a debate of this kind, following the coming into force of the European Union Act 2011. This is Section 10 doing its job, in effect, allowing parliamentary scrutiny of, focus on and pressures towards important decisions in the EU. It is quite clear from the discussions this evening that this process works. It comes with a very clear message that will emerge in a moment, but certainly it is an opportunity to put a message that would not have been there before.

As we know, the regulations before us this evening make a number of fairly minor changes—there is no disguising that they are minor—primarily to the Court of Justice and to the Civil Service Tribunal. The changes are aimed at improving efficiency and overcoming the backlogs in those two courts.

I do not think that I have ever had an easier task than I have had this evening because every one of your Lordships who has spoken has made the same central point, which I totally recognise and of which I see the validity. The point is that the move towards the appointment of more judges and reform to overcome the backlog in the General Court should be going forward faster. All noble Lords who have spoken displayed a clear view that would like to see the situation move faster; that it is, in the words of the noble Lord, Lord Anderson, unacceptable to have delay; and, in the graphic words of the noble Earl, Lord Sandwich, that the wheels of the legal system of the European Union and the wheels of international discussion or supranational discussion, move very slowly indeed. The United Kingdom will certainly continue to press forward. We are members of the friends of the presidency group; we are aiming for the December report, as I made clear in my opening remarks; and, as the noble Lord, Lord Williamson, rightly emphasised with his enormous experience of these things, there will be the need for very careful consideration.

I mentioned in my opening remarks the selection of the judges. The noble Lord, Lord Williamson, asked whether 12 was the right number—12, of course, is the number that emerges from the Court’s own views.

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Lord Anderson of Swansea: The Minister mentioned the December report. He surely recognises that that is an informal procedure, which has to be restored to the formal tracks. Does the Minister agree that it may take a year from now before any new judges are in place?

Lord Howell of Guildford: I cannot really agree with that because I do not know exactly how the pressures will build up. It is possible, of course, that it will take a year—that is a gloomy assessment—but the report may be very well focused. The momentum behind it may increase. Indeed, the results of this evening’s debate may assist in the kind of momentum that the noble Lord wants to see.

The noble Lord, Lord Bowness, who obviously speaks with enormous authority on these matters, asked particularly why Section 10 applied to the draft regulation relating to temporary judges of the EU Civil Service Tribunal. The answer is that the legal basis of that draft regulation is Article 257 of the Treaty on the Functioning of the European Union, and that is listed in Section 10(1)(d) of the European Union Act 2011, which we took through this House a year ago. That is the technical answer to the very detailed question that the noble Lord rightly put, because it is the detail that this Chamber can focus on remarkably effectively. It gives me great pleasure that your Lordships’ House is able to look in such detail at these matters.

Your Lordships mentioned a whole range of other issues, all coming back to the question of delay. Obviously costs are involved. In this age, we cannot just put them aside. Although costs should not be the decisive matter, we should take them very carefully into consideration.

The noble Lord, Lord Hannay, pointed out that, in addition to the fact that the Lisbon treaty obviously added greatly to the functions and responsibilities of the ECJ, ahead lie other key decisions about opting in and opting out in 2014. They are decisions that we will have to debate and they will be taken very carefully. I think that almost every other noble Lord who spoke, including the noble Lords, Lord Marks of Henley-on-Thames and Lord Liddle, and I have mentioned all the other noble Lords, all referred to speeding up matters.

Lord Hannay of Chiswick: I just want to ensure that the noble Lord appreciates, as I am sure he does, that the extension of the workload of the European Court of Justice, by getting jurisdiction over the justice and home affairs area, does not depend on our decision. Whichever decision we make, 26 countries will be subject to that jurisdiction in December 2014, and that is going to increase the workload massively, whatever decision we come to.

Lord Howell of Guildford: I am sure that the noble Lord is right to emphasise that. The workload will increase. We have heard various reasons for that but some of them must arise from the changes made in the Lisbon treaty. Some arise from the increased litigation; some, as the noble Lord, Lord Williamson, reminded us, arise from international pressures; and some from the increased membership. All those things add up to the fact that this is a Court which, if it is to work efficiently, must clearly gear itself to a much greater load than it has had in the past. I do not think that anyone could dispute that.

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As I said, the draft regulations are minor, and the Government support them. We think that they make a step in the right direction and that they will support increased efficiency in this very important European institution. They should also help to prevent a further backlog of cases building up before the European Court of Justice and the European Civil Service Tribunal. There has been a considerable problem for the General Court, as pointed out by the committee and as highlighted graphically by my noble friend Lord Bowness this evening.

If I may meet the challenge put by the noble Lord, Lord Liddle, it is absolutely clear to us that an effective and efficient Court of Justice of the EU is in our national interest. British businesses rely on the timely administration of justice within the context of the single market, and a single market that is able to operate effectively is as crucial now as it ever was as we seek to restore the growth and confidence required to build Britain’s prosperity.

Therefore, the Government will continue to work on wider efficiency reforms to the Court of Justice of the European Union, as indeed they will continue to do in relation to the General Court. Those things will have to be taken carefully but we will press on with them.

I thank noble Lords for their contributions to the discussion. I hope that I have covered every detailed point as well as the general points which I have been asked to comment on. If I have not, I shall of course write to your Lordships. I am grateful for the very clear message that has gone out from this House this evening, and I commend this Motion to the House.

Lord Beecham: My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,

“held by an intelligence service”,

which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.

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Amendment 80A, on the other hand, looks at the rather more significant issue of whether,

“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—

which is, of course, accepted—

“or (b) to the interests of the international relations of the United Kingdom”.

The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,

“the interests of the international relations of the United Kingdom”.

Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?

One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.

I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.

It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.

9.30 pm

Following consideration of the responses to the Green Paper, the Government narrowed down closed material proceedings to issues that would damage the interests of national security. We took that view with regard to Norwich Pharmacal, not least because of the consideration that all matters are subject to disclosure when there is no possibility of settlement. When it comes to a Secretary of State’s certificate, we sought

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not only to have regard to matters of national security but, as set out in Clause 13(5), to the interests of the international relations of the United Kingdom.

Diplomacy does not work if diplomats are not able to talk in confidence. No Government would, or should, lightly sacrifice the benefits that effective diplomacy can offer. If other countries are aware, as they are now, that sensitive material that they share with us in confidence may be ordered to be disclosed by United Kingdom courts, this knowledge alone—leaving aside any specific instance of disclosure being ordered—may cause them to limit the amount and nature of the material they choose to share with us. Diplomatic communication can then be inhibited; conversations will be less frank, and therefore information of great value to the UK will not be shared with us.

It is easy to conceive of a case where disclosure of diplomatic communications may be ordered. UK diplomats engage in hundreds, possibly thousands, of discussions every day with contacts in other countries. Within those relationships, they may receive information in confidence about another country’s actions, and that material could conceivably be sought by way of a Norwich Pharmacal application. Disclosure could damage the United Kingdom’s relationship with another country.

Effective and confidential communications with other countries can be of the highest value in deciding how to protect and further the United Kingdom’s interests. If international partners do not trust us to keep their advice and assessments confidential, we fear that this could have a serious impact on United Kingdom interests in the fields of human rights co-operation, consular assistance for UK citizens, trade and investment, and jobs, to name but a few. The aim of diplomacy is to deliver benefits for citizens in relation to prosperity, security and consular services. Damage to our country’s international relations reduces, potentially significantly, the Government’s ability to deliver those benefits.

I trust that that point is well made. In the Omar case, the court found that if the Government were in a position to provide evidence of the type sought by the claimant and were ordered by the court to disclose it, the United Kingdom’s relations with Uganda would be damaged. In coming to that conclusion, it gave very considerable weight to the evidence that any such disclosure would be likely to be seen as a deliberate attempt by the UK Government to derail the efforts of the Government of Uganda to bring terrorists to justice and as a grave betrayal by the United Kingdom of its promise to stand with Uganda in its fight against terrorism.

The amendments spoken to by the noble Lord, Lord Beecham, refer to,

“the international relations of the United Kingdom”,

rather than,

“the interests of the international relations of the United Kingdom”.

We understand the desire to keep the exemption as narrow as possible, and the concern that,

“damage … to the interests of the international relations of the United Kingdom”,

might well be interpreted more widely than simply,

“damage … to the international relations of the United Kingdom”.

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However, the phrase “the interests of” has been included because it is fairly commonly used in other legislation involving the United Kingdom’s international relations; for example, Section 97 of the Nationality, Immigration and Asylum Act 2002 refers to,

“the interests of the relationship between the United Kingdom and another country”.

Section 38 of the Transport Act 2000, like other privatisation legislation, allows the Secretary of State to give directions,

“in the interests of encouraging or maintaining the United Kingdom’s relations with another country or territory”.

The noble Lord also suggested amendments narrowing the definition of “sensitive information” to information obtained or derived from a foreign intelligence service, and removing from the definition information,

“relating to an intelligence service”.

I hope I explained in the earlier debate why the definition needs to include all sensitive material, the disclosure of which could damage the interests of national security and international relations, not just information from a foreign intelligence service.

The inclusion of information “relating to” an intelligence service is important in order to allow protection for information that may be non-operational but which nevertheless is still essential for delivering core functions of the intelligence services and could be damaging if disclosed, because it would still be damaging to the interests of national security. For example, were the details of the intelligence services’ IT systems to be disclosed, this could affect the integrity of those systems.

The noble Lord raises an important point; I thank him for these probing amendments. I hope that in terms both of international relations and our reasoning on including the words,

“relating to the intelligence services”,

he is reassured that we are seeking to give the appropriate protection in these cases. I therefore ask the noble Lord to withdraw his amendment.

Lord Beecham: I am grateful to the Minister for his explanation. Both those matters go rather wider than is necessary to protect the particularly relevant considerations of national security. They could be used to justify almost anything in relation to the activities of other countries, and to protect them, as it were, from claims brought under the Norwich Pharmacal procedures. The very fact of the result of the Omar case—if it is upheld—would, in any case, indicate that the courts will not rush to supply or to authorise disclosure. To that extent, it may be that the Bill as drafted is unnecessary. I remain somewhat concerned at the breadth of reach of these proposals. However, in the circumstances I beg leave to withdraw the amendment.

Amendment 74A withdrawn.

Amendments 75 to 81 not moved.

Clause 13 agreed.

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Clause 14 : Review of certification

Amendments 82 to 87 not moved.

Clause 14 agreed.

Amendment 88 not moved.

Amendment 89

Moved by Baroness Berridge

89: After Clause 14, insert the following new Clause—

“Annual renewal

(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.”

Baroness Berridge: My Lords, along with the reporting and recording requirements in previous amendments, the new clause proposed by this amendment would keep Parliament abreast of the use of closed material procedures. It is modelled on the provision that was introduced when the control orders were introduced into our system. For the first five years they were subject to annual renewal because they were a novel jurisdiction. The same point applies here with the closed material procedures in civil proceedings.

In Committee, many of your Lordships have mentioned the impact that closed material procedures could have on public confidence in the judicial process. This amendment means that without a resolution of each House the powers fail, which is the appropriate mechanism for Parliament to act swiftly, should there be significant concerns about the understanding of and confidence in our judicial system. One of the agreed facts in Committee has been that this is a controversial mechanism to introduce into the civil justice system. It has been noted that Parliament would have introduced this despite the almost universal view of the special advocates that it is not to be recommended.

It is important to have a swift get-out clause to halt closed material procedures, which this amendment gives. Any mechanism that required primary legislation to amend the Act would take too long to deal with such a situation. I beg to move.

Lord Pannick: My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures

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under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.

I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.

Lord Lester of Herne Hill: I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

Lord Beecham: My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.

9.45 pm

Baroness Stowell of Beeston: My Lords, I am merely a Whip, and do not have any powers that would extend to conferring a peerage on anybody, but I will certainly ensure that those that have more authority are aware of the view of the noble Lord, Lord Pannick, about Mr Anderson QC.

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The amendment moved by my noble friend Lady Berridge is part of a wider set of amendments that she has tabled—some of which we debated last week—which are part of a package of measures that noble Lords would like to see introduced in order to ensure that the Bill, if it becomes an Act, is reviewed post its Royal Assent.

I can understand the reasons behind that because, as we have acknowledged on many occasions, this is a Bill which would introduce very different measures to the justice system than have been in place hitherto. However, we believe that the amendment is not necessary. I hope I can explain why to the satisfaction of your Lordships this evening.

In the case of Norwich Pharmacal, the primary problem we are seeking to address is how we provide reassurance to our allies that we can protect information shared with us in confidence. We had an extensive debate about this before dinner. One question we could ask ourselves is: would we share a secret with someone knowing full well that it was only guaranteed to be safe for up to 12 months, and that after that time the person might be required to release that information? We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments have already seriously undermined confidence among our key allies, as we have heard this evening.

A time-limited protection will simply not provide enough reassurance. It would cause our allies to continue to doubt our ability to keep material safe from disclosure. For these reasons the measures in Clauses 13 and 14 of the Bill remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations.

In relation to proceedings in which the CMPs introduced by Clause 6 would be available, we expect that current CMP live cases would be dealt with in the first year, with stayed cases spread over the two years thereafter, alongside other emerging cases. As noble Lords know who are more familiar with the law than I am, civil claim caseloads can be unpredictable in the long term. I believe it is important that claimants have the continued ability to bring all claims against the Government, and that matters are scrutinised by the courts, rather than returning to the current system, where in some circumstances justice is not possible.

I should remind the House that the Bill provides the power to remove a court or tribunal from the definition of “relevant civil proceeding”, as we heard in previous debates tonight, where there is no longer a case for it to be included. This is already provided for in the order-making power in Clause 11.

As we have discussed several times during previous debates, the final decision to hold a CMP in the High Court, Court of Appeal or a Court of Session will be made by a judge. The judge will determine whether a CMP goes ahead on the grounds that there is some material relevant to the case, the disclosure of which would damage national security. The judge would

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then decide how each individual piece of evidence should be dealt with, and whether that should be in closed session or in open session. We can be confident that the judge will ensure that the provisions for CMPs will be used only in the very specific and narrow circumstances where that test is met.

In the case of challenges of the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of those clauses would reduce fairness by removing the ability to challenge those decisions effectively.

By way of contrast, there are similar provisions in the TPIM Act. My noble friend referred to the control orders and the introduction of a sunset clause when control orders, the predecessors of TPIMs, were introduced. Under Section 21 of that Act, the powers expire five years after Royal Assent. This can then be extended for further periods of five years. However, TPIMs are unique. They involve measures that have an impact on the daily lives of those subject to the orders, including restrictions on liberty. As a consequence Parliament decided that strict post-legislative measures were needed. There are no sunset provisions in place in any other context where CMPs are available.

I should also point out that in its report the Constitution Committee considered how the Bill should be reviewed after Royal Assent, and it did not recommend a sunset clause. Its report said that the House might wish to consider the Bill being independently reviewed five years after it came into force. As I explained in my response to Amendment 67A last week on day 3 of Committee, Bills are normally subject to review three to five years after Royal Assent. The Select Committee responsible will then decide whether it wishes to conduct a further post-legislative inquiry into the Act and it is right to leave it to the Select Committee to decide the form of independent post-legislative scrutiny.

As I said, I recognise that the amendment and others like it that we have discussed previously are inspired by a strong feeling among some noble Lords that we should have in place a thorough process for post-legislative scrutiny on a Bill that is introducing something different. But, as I hope I have been able to outline tonight, the measures that already exist will meet the objective that has been set out by those who spoke in favour of the amendments, and sufficient safeguards are in place without introducing a sunset clause. On the basis of that, I hope that my noble friend will feel able to withdraw her amendment.

Baroness Berridge: My Lords, I am grateful to the noble Lord, Lord Pannick, for illustrating how one can tangent with one amendment to introduce a slightly different topic. I am also grateful to the noble Lord, Lord Beecham; I think that we now have a score draw on whether there is support from the Benches opposite for my amendments.

I am of course disappointed to hear that my noble friend does not believe that this is necessary. There are distinctions between control orders that affect the liberty of the citizen as opposed to this jurisdiction.

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This is a very distinct jurisdiction to be introducing closed material procedures into. It will affect our civil justice process, which is very different from the other legislative regimes. In civil proceedings, it often calls the Government to account for their actions. Vast amounts of resources, as I saw going down to the High Court, are invested in putting someone under a control order. It was said that there is nothing worse for them than being in existence for only a year, even though so much is invested in them and it could have all fallen flat in that year.

Finally, it was said that people would not share secrets thinking that they would be secret only for a year, but there has been agreement around the House that this is a very narrow jurisdiction, particularly after the Omar case that we are dealing with, so there would be no massive knock-back effect on intelligence if there were some kind of sunset clause. I hope that we will be able to return to this matter later on in the proceedings on the Bill. I beg leave to withdraw the amendment.

Amendment 89 withdrawn.

Amendment 90

Moved by Lord Lester of Herne Hill

90: After Clause 14, insert the following new Clause—

“Overriding objectives

In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—

(a) to the overriding objective of protecting the interests of justice and fairness, and

(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”

Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.

The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.

The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.

Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a

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whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,

“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.

Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.

Lord Pannick: My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

Lord Butler of Brockwell: My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?

Lord Lester of Herne Hill: I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.

Lord Butler of Brockwell: I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,

“must have regard … to the objective of protecting the interests of justice and fairness”,

followed by subsection (b).

Lord Falconer of Thoroton: If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,

“overriding objective of protecting the interests of justice and fairness”,

as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the

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claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.

Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,

“necessary to protect the interests of national security”.

The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.

Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.

Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.

Noble Lords: Lord Green.

10 pm

Lord Wallace of Tankerness: My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.

I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to

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maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:

“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.

I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.

I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.

The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.

Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.

Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court

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refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.

Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.

It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.

I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.

I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.

It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.

Lord Lester of Herne Hill: My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to

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say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.

My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.

The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.

Having said all that, of course I beg leave to withdraw the amendment.